Date: 20011220
Neutral citation: 2001 FCT 1419
In the matter of Sections 57 and 58 of
the Trade-marks Act (R.S.C. 1985 c. T-13)
In respect of an Application for Expungement
of the Registration of the
Trade-mark BOOSTER No. TMA 026,408
BETWEEN:
JEAN PATOU INC.
Applicant
- and -
LUXO LABORATORIES LIMITED
Respondent
ASSESSMENT OF COSTS - REASONS
ASSESSMENT OFFICER
[1] On December 30, 1998, the Court (Lutfy J.- as he then was) rendered an order dismissing the Applicant's Application for Expungement of the Registration of the Trade-mark BOOSTER No. TMA 026,408 with costs to the Respondent.
[2] The Respondent's bill of costs was filed on June 11, 1998 and it was noted that this assessment appeared appropriate for disposition by way of written submissions. On July13, 2001, a letter was therefore sent to both parties setting down a timetable for their written material to be served and filed. Said material having been received, I will now proceed with the assessment of the bill of costs.
[3] In its bill of costs, the Respondent asks for the maximum number of units for the preparation and filing of its Reply. Considering the factors set out in Rule 400(3) of the Federal Court Rules, 1998, more particularly paragraph c) regarding the complexity of the issue at stake, six units are allowed.
[4] The order of the Court (Joyal J.) dated June 16, 1997 granting the Respondent's motion for security for costs and the order of the Associate Chief Justice Jérôme (as he then was) of July 14, 1997 dismissing the Respondent's motion to cross-examine the Applicant's affiant, are silent as to costs. Consequently, the seven units claimed under item 5 for the preparation and filing of the Respondent's contested motions, will not be allowed.
[5] The units claimed under item 6 for appearances on the Respondent's motions on June 16, 1997 and on July 14, 1997, are not allowed. Both Court orders on these motions were silent as to costs.
[6] The counsel's fee claimed under item 13(a) for the preparation for hearing is considered reasonable and allowed at 4 units. As agreed by the parties and having considered this item to be reasonable, three(3) units will be allowed under item 13(b) for the preparation for hearing per day in Court after the first day.
[7] Item 14(a) is allowed at two(2) units per hour in Court for a total of $2,640.00. I agree with the Applicant's counsel in his written submissions, that the complexity of this matter does not warrant the granting of the maximum number of units.
[8] For the same reason, I allow five(5) units for item 15 for the preparation and filing of written argument, that was requested by the Court.
[9] The order of Mr. Justice Lutfy (as he then was) rendered on December 30, 1998 is silent as to costs with regards to travel time, this being at his discretion, the units claimed with regards to travel by counsel to attend hearing on October 19, 1998 in Ottawa is not allowed.
[10] Item 25 is allowed as claimed.
[11] Item 26 is assessed four(4) units having regards to the material submitted by counsel.
DISBURSEMENTS
[12] The disbursements claimed by the Respondent for telephone, facsimile, postage, courier, binding, on-line computer research, agency charges and Government fee are not contested, and are considered reasonable and necessary. Therefore, they are allowed in full.
[13] The travel charges for the hearing held in Ottawa are reduced to $685.04 to accurately reflect the affidavit of disbursements of A. Louise McLean sworn on June 8, 1999, and the exhibits attached.
[14] The translation's charges of Applicant's documents from French to English are taxed off the Respondent's bill of costs. In Lavigne v.Canada (Human Resources Development), [1995] F.C.J. No. 1629, Richard J. (as he then was) held that:
Subsection 19(1) of the Canadian Charter of Rights & Freedom provides that either English or French may be used by any person in, or in any pleading in or process issuing from, any Court established by Parliament. The Federal Court is a Court established by Parliament. The right embodies at a minimum the right to speak and make written submissions in the language of one's choice. It includes the right to be understood by the judge or judges hearing the case. However, this guarantee of language equality is not a guarantee that the official language used by any person will be understood by the person to whom the pleading or process is addressed.
[15] The following excerpt from Justice Muldoon's decision in Maison des Pâtes Pasta Bella Inc. v. Oliveri Foods Ltd., [1999] F.C.J. No. 213 supports my thinking on translation expenses:
The assessment officer's refusal to admit translation expenses into the award of costs must stand. The Federal Court, as has often been stated, is a national court, and its jurisdiction extends from coast to coast. It is, therefore, a bilingual court in both nature and function, and parties appearing before it may use either of the official languages. Choice of language should not result in the imposition, or burden, of additional costs; indeed, such a result could set a dangerous precedent.
[16] In the Respondent's bill of costs, the amount of $655.82 is requested for the making of 5962 photocopies at $0.11/page. In reading the affidavit of A. Louise McLean sworn on June 8, 1999 and filed in support of the Respondent's bill of costs, I note that 3247 photocopies were made during the course of this matter at $0.11/page. Having considered the file, the arguments of both parties and the affidavit referred below, the amount of $357.17 is considered reasonable and allowed.
[17] The Federal Goods and Services Tax (GST) claimed by the Respondent is allowed for a total amount of $486.65.
[18] Accordingly, a certificate of assessment is issued in the amount of $7,438.78.
"Johanne Parent"
J. Parent
Assessment Officer
Toronto, Ontario
December 20, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-713-97
STYLE OF CAUSE: JEAN PATOU INC.
Applicant
- and -
LUXO LABORATORIES LIMITED
Respondent
ASSESSMENT WITHOUT PERSONAL APPEARANCE OF PARTIES
ASSESSMENT OF COSTS -
REASONS BY: JOHANNE PARENT, Assessment Officer
DATED: THURSDAY, DECEMBER 20, 2001
WRITTEN SUBMISSIONS BY: Philippe Leroux
For the Applicant
Kenneth D. McKay
For the Respondent
SOLICITORS OF RECORD: Brouillette Charpentier Fortin
Lawyers, S.E.N.C.
Patent & Trade Mark Agents
1100 René-Lévesque Blvd. West
25th Floor
Montreal, Quebec
H3B 5C9
For the Applicant
SIM, HUGHES, ASHTON & MCKAY
Barristers and Solicitors
6th Floor
330 University Ave.
Toronto, Ontario
M5G 1R7
For the Respondent
FEDERAL COURT OF CANADA
Date: 20011220
Docket: T-713-97
BETWEEN:
JEAN PATOU INC.
Applicant
- and -
LUXO LABORATORIES LIMITED
Respondent
ASSESSMENT OF COSTS - REASONS